De Jesus v The Queen

[2003] WASCA 84

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   COURT OF CRIMINAL APPEAL

CITATION:   DE JESUS -v- THE QUEEN [2003] WASCA 84

CORAM:   MURRAY J

WHEELER J
EM HEENAN J

HEARD:   1 APRIL 2003

DELIVERED          :   1 APRIL 2003

FILE NO/S:   CCA 131 of 2002

BETWEEN:   MANUEL FILESBERTO DE JESUS

Applicant

AND

THE QUEEN
Respondent

Catchwords:

Crimes confiscations of profits legislation - Application to extend time to appeal from forfeiture order - No prospect of success - Application refused

Legislation:

Crimes (Confiscation of Profits) Act 1988, s 10(2), s 12 and s 58(1)(a)

Misuse of Drugs Act 1981, s 17

Result:

Application for extension of time for leave to appeal against forfeiture order refused

Category:    B

Representation:

Counsel:

Applicant:     In person

Respondent:     Mr D Dempster

Solicitors:

Applicant:     In person

Respondent:     State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

De Jesus v The Queen [2000] WASCA 128

R v Azaddin (1999) 109 A Crim R 474

Rintel v The Queen (1991) 3 WAR 527

1. MURRAY J:  I shall ask Heenan J to give his Honour's reasons for decision first.

2. HEENAN J:  This is an application for an extension of time for leave to appeal against a forfeiture order made under the provisions of the Crimes (Confiscation of Profits) Act. That is the effect of s 58(1)(a) of the Act as it stood at the time of these proceedings.

3. The background is that the applicant was convicted on 21 May 1999 of supplying quantities of heroin. The quantity involved was of such a magnitude that he was declared to be a drug trafficker pursuant to s 32A of the Misuse of Drugs Act as it then stood. The consequence of that declaration was that all property which had been acquired by the applicant within the previous six years was presumed to be property derived from unlawful acts. That is the effect of subs 10(2) of the Crimes (Confiscation of Profits) Act as it then stood.  Nevertheless, it was open to the applicant to refute the statutory presumption by adducing evidence to show the property was lawfully acquired.

4. The property which is the subject of these proceedings comprises three parcels of shares purchased on behalf of the applicant through a firm of stockbrokers in February and March of 1998.  The three parcels are:  one in Plenty River which was purchased for $1999.75, another parcel in Kingstream which were purchased for $1299.95, and third, a parcel of shares in Coles Myer Ltd which were purchased for $3800.70.  All those figures include brokerage.  The net price of those shares, therefore, was in the vicinity of $7000 or a little more.

5. The applicant brought on an application before the District Court of Western Australia in an attempt to prove that the property was lawfully obtained.  This was heard before her Honour Judge Kennedy in the District Court on 12 December 2001.  The evidence adduced at that hearing is contained in the appeal book at pages 127 to 189.

6. At the end of that hearing in reasons which her Honour gave, at pages 189 to 191 of the transcript, her Honour accepted that there was a probability that some but not all of the money may have been lawfully obtained and that the source of the lawfully obtained money was the results of gambling on the TAB.  However, her Honour did not accept that all of the money which was used for the acquisition of these shares came from lawful sources and she apportioned between the shareholdings, the moneys which she considered to be lawfully obtained and that which was not.  The result was, no doubt as a form of approximation which was

justified having regard to the paucity of the evidence, that the money used for the acquisition of the Coles Myer shares, the $3800‑odd, may have been lawfully obtained but, her Honour was not satisfied that the balance of the money was lawfully obtained.  Consequently, the ultimate effect of the forfeiture was that the applicant recovered the Coles Myer parcel of shares but the shares in Plenty River and Kingstream remained forfeited.

1. In the process of her reasons for decision, her Honour observed that the applicant had been dealing in heroin, that he obviously had access to large sums of money, and that, although he had a gambling problem, he had not accounted satisfactorily for the source of the money which was used to place the bets for the winnings which he claimed to have achieved.  Hence the apportionment which I have mentioned.  In the process her Honour also observed that she did not believe entirely all that the applicant had said.

2. The applicant now seeks to appeal from her Honour's decision on the basis that, essentially, fresh evidence has been obtained since that hearing.  The fresh evidence to which reference is made is the recovery of a bundle of TAB collection slips showing winnings claimed to have been collected by the applicant at about, or shortly before, the time the shares were purchased and which, on his assertion, account for the source of the share purchase moneys.  These are betting slips which are reproduced at pages 23 and 24 of the appeal book.  They comprise some 11 slips in all, showing that over the period which they covered there were collections of some $12,280 or a little more or less.

3. The assertion that they constitute fresh evidence relies on the submission by the applicant that these betting slips had been seized by the police at or about the time when he was arrested and that they continued to be held in police custody up until after the proceedings before her Honour Judge Kennedy and hence were not available to him to tender in evidence before her Honour.  Strictly speaking, they are not fresh because they were in existence at the time of those proceedings and, had the applicant wished to do so, a subpoena could have been issued to require their production.  In my opinion, this is not fresh evidence which would satisfy the test of admissibility in support of an appeal.  However, even if one were to take a contrary view, proof of collection of some $12,000 or a little more in January or February of 1998 does not appear to me to discharge the onus of proof which rested upon the applicant to show that the shares were lawfully obtained.

4. First of all, there is no evidence whatever about the source of the money which was used to place the bets which resulted in these collections.  It is straining credulity to believe that a steady stream of winnings could have occurred without corresponding losses which would have offset, at least to some degree, these collections.  Accordingly, unless there were some record of the betting transactions during the period in which these winnings were claimed to have been made, it would not be possible to say whether or not the money came entirely from winnings or was supplemented by money from other unlawful sources.  Nor is it possible to say what were the sources of the funds which produced the winnings, no account having been offered.

5. That being the case, it seems to me that there is simply no acceptable proof that the cash said to have been derived from these winnings was lawfully obtained and that really should be the end of the matter.  However, there are other suspicious factors which tell against the applicant's assertions.  It is said that from cash on hand the applicant gave to a friend money to invest in shares.  He does not know exactly how much money was given and no receipt was requested or delivered.  The friend, by hearsay accounts, used the money to obtain postal notes from the post office in order to provide an acceptable currency for delivery to the sharebrokers for the purchase of the shares.  No details of the purchase of the postal notes has been provided, nor any receipts for those postal notes.

6. There has been no attempt to reconcile the amount offered in postal notes for the purchase of the shares with the cash which was delivered to the intermediary and it seems from his submissions that Mr De Jesus thinks that more was paid than was required for the purchase of the shares.  Yet no explanation is given why the balance was not returned or pursued.  This clouds the whole of the transactions dealing with the cash and the postal notes with suspicion.

7. In this situation it is important to recall constantly that the onus of proving that the property was lawfully obtained rests upon the applicant.  If he fails in the proof or fails to provide credible evidence in support of his proofs, the consequence is that he fails in his task.  To my mind, the so‑called fresh evidence, even if it were admissible, would not be of sufficient cogency to refute the presumption that the money was unlawfully obtained and hence the shares derived from it were property which was correctly forfeited to the crown. 

8. Accordingly, there being no real prospect of success, I see no occasion to extend the time to appeal and I would refuse the application to extend time and for leave to appeal.

1. MURRAY J:  I agree.  It seems to me that there is little that I need to add to the reasons given by Heenan J.  The only additional comment I would wish to make is that although the late application or notice of appeal on the part of the applicant seeks to challenge the order made by Kennedy DCJ in relation to the forfeiture of the sum of $2950 in addition to the shares, there is nothing which is raised which would cause this Court to set aside her Honour's order in regard to either the funds or the shares.

2. So far as the funds are concerned, the applicant's position was hopeless once her Honour made the decision she did that the applicant's evidence was not to be accepted in respect of his drug‑dealing activities or lack of them.

3. The other observation I would make is that the document under the hand of Mr Roncevic is inadmissible in its present form in any event.  The new evidence in its entirety, however, rather than relying upon difficulties in the form in which it was presented and whether or not it is new or fresh in the legal sense, seems to me crucially to lack cogency and persuasive power to enable this Court to find any material upon which it ought to intervene.

4. The application or notice of appeal is, as I have said, out of time.  There is little, it seems to me, in the material advanced in support of the application for extension of time which would allow the Court to grant that extension having regard to the reasons for the delay.  The only basis upon which the Court would therefore extend time to make the application or to enable the appeal to be heard would be upon the basis that the failure to do so would leave unredressed patent injustice.

5. It follows from the reasons given by Heenan J, with which I agree, that there is no difficulty of that kind which would lead to this Court intervening.  I agree that the application for an extension of time should be refused.

6. WHEELER J:  I am in agreement with the reasons of Murray and Heenan JJ and I would add only these comments.

7. As well as what appears to be the central proposed ground revolving around what is said to be the fresh evidence of the betting slips, there are additionally references in the proposed grounds of appeal to certain delays and difficulties faced by the applicant during the course of the confiscation proceedings.  For example, it is said that the proceedings took some 14 months to finalise.  That they occurred may have been

unfortunate, but they do not appear to me to touch the merits of the application at all.  There is also an observation that other property, for example vehicles, was not confiscated and, again, that fact seems to me not to touch the merits of the application in respect of that property which was confiscated.

1. In relation to what is said to be the fresh evidence of the betting slips, I agree that it is not properly to be considered as fresh evidence.  Even if it were, I would observe that so far as the cash is concerned (the sum of $2950), that was money which the applicant said had come from the casino and nothing in relation to the betting tickets would appear to touch that.  As to that, her Honour observed that there was nothing to establish that it had come from the casino, the burden being on the applicant, and it was clear that she did not believe his account in relation to the cash.

2. So far as the shares are concerned, it seems to me that even if one accepts that those sums were won by the applicant at the time shown on the face of the betting slips, that would not in any way have affected the decision which her Honour came to.  She accepted that the applicant was a gambler.  She expressed the view that she had no doubt that overall he would have lost, but she did accept on the balance of probabilities that some of the share money may have come from gambling.  She apportioned the Coles Myer shares to him accordingly.  It is my view that at the very highest all that the additional betting slips could have done would have been to have fortified her Honour in that conclusion.  I too would dismiss the application for extension of time.